A tail isn't a leg —

Copyright troll Righthaven finally, completely dead

Never had standing to sue, Ninth Circuit confirms.

Righthaven, the Las Vegas operation that sought to turn newspaper article copyright lawsuits into a business model, can now slap a date on its death certificate: May 9, 2013. This morning, the US Court of Appeals for the Ninth Circuit ruled on the two Righthaven appeals that could have given the firm a final glimmer of hope—and the court told Righthaven to take a hike (PDF).

"Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so," the opinion begins.

"Before us is a case about a lawyer who tried to establish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln's wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so."

Righthaven's grand plan was to license articles from the Las Vegas Review-Journal, find people who had posted pieces of those articles online, then threaten those people with massive statutory damages unless they sent in checks for a couple thousand dollars. This proved hugely controversial, largely because it involved Righthaven threatening all manner of appealing defendants—up to and including sources for Review-Journal stories and an Ars Technica author.

Righthaven was run by lawyers, but those lawyers made a major mistake: they never actually assigned the copyrights in the newspaper articles to Righthaven. What they did assign was, in the court's words, "the right to sue for infringement." No such right exists in US copyright law, however, and since the Review-Journal maintained functional control over the exploitation of those copyrights, Righthaven had no standing to bring its lawsuits.

Righthaven made all sorts of arguments that it really did control the copyrights in the articles, but the Ninth Circuit didn't like any of them. All such arguments were like that made by the lawyer in Lincoln's story—Righthaven could assert that it was the copyright owner, but the judges said this was mere "form over substance." Calling oneself the copyright owner doesn't make it so; one has to look at the rights that are actually conveyed.

The Righthaven story has been a pathetic one for some time; the company's assets were seized, its domain name and copyrights were sold off, and money was paid to defense lawyers. In the absence of a future (and deeply unlikely) Supreme Court appeal, Righthaven is now done. Why did it even continue to fight for this long? Marc Randazza, the lawyer who helped bring Righthaven down, told us back in February that the appeal was "a tantrum and an attempt to salve [Righthaven principal Steve Gibson's] ego. And I can almost respect that."

Update: In a press release today, Randazza said, “Copyright law exists to protect the creative process, and to reward authors–not to create illegitimate shakedown schemes. Everyone at the firm is proud of its role in bringing this matter to its conclusion. However, given Righthaven’s unwillingness to make rational choices, I expect a petition for the United States Supreme Court to hear the case. Stay tuned.”

I don't even understand how they thought this was legal, let alone a good idea. There already exists a business model for law firms to monitor an organization's IP for them, file lawsuits as their legal representative, and earn fees off of that business. Maybe they wanted more than the standard 33%. But okay, negotiate a contract for a larger amount.

These idiots actually made it more complicated, with a dubious (and now proven false) business relationship. Not that I'm the least bit sympathetic to what they were trying to do, because I think their end goal was still evil. But from a legal technical standpoint, these guys were morons, just for the way they went about trying to shake down people.

"Marc Randazza, the lawyer who helped bring Righthaven down, told us back in February that the appeal was "a tantrum and an attempt to salve [Righthaven principal Steve Gibson's] ego. And I can almost respect that.""

"Righthaven was run by lawyers, but those lawyers made a major mistake: they never actually assigned the copyrights in the newspaper articles to Righthaven. What they did assign was, in the court's words, "the right to sue for infringement." No such right exists in US copyright law, however, and since the Review-Journal maintained functional control over the exploitation of those copyrights, Righthaven had no standing to bring its lawsuits."

Does this mean that the copyright holders could have/still can pursue this if they wanted?Was the mistake of these lawyers an oversight, or was it the most they could try to get away with with the copyrights?

I don't even understand how they thought this was legal, let alone a good idea. There already exists a business model for law firms to monitor an organization's IP for them, file lawsuits as their legal representative, and earn fees off of that business. Maybe they wanted more than the standard 33%. But okay, negotiate a contract for a larger amount..

There are various legal ethics rules imposed by state bars that require a lawyer's fee to be "reasonable". As you go beyond the 33%, the risk of the fee being found unreasonable increases.

That's not to imply anything Righthaven did was ethical or reasonable, but that probably played a role in their approach to this.

Does this mean that the copyright holders could have/still can pursue this if they wanted?Was the mistake of these lawyers an oversight, or was it the most they could try to get away with with the copyrights?

Possibly. But there might also be statute of limitations issues. You only have a certain number of years after the alleged incident to file a lawsuit. If the statute of limitations has already expired, then they're SOL. But if it hasn't, they could file a lawsuit. Then again, the cases may be crap anyway. A number of those threats by Righthaven were shown to be rather clearly cases of fair use. I might guess that the Las Vegas Review-Journal might want to just let this die.

IIRC about this long-running story, the unusual "right to sue" assignment was an attempt to insulate the actual copyright owners from the consequences (and bad press) if the scheme went wrong. It was sorta like the injury lawyers on late-night TV : "We can get you FREE MONEY! No cash upfront, you pay nothing if we don't win!"

Well if they do petition I would be curious to see whatever the Supreme Court says maybe it will frighten the other copy-cats away from this type of extortion scheme.

this post is worth repeating. i'd love nothing more than the SCOTUS to give an end-all-be-all smackdown to these trolls and set a precedent that will scare the bejesus out of any other potential and existing trolls to CUT THAT SHIT OUT.

Well this isn't a surprise to be honest. Maybe Gibson was looking at the appellate decision as:

"the courts weren't rejecting Righthavens copyright and settlement scheme, they were just giving us guidance".

I still Remember when Gibson barfed out that quote, and had to shake my head at the delusions of grandeur he had to spin it into a victory.

One Copyright Troll, down next Prenda Law et all. I wonder if Gibson and Stelle friended one another on Facebook and exchange strategy while trading pictures back and forth, you know the one of Steele in his tux and the one of Gibson in his Pink shirt and his headset on.

I wonder if these two can get cells next to one another, I can't think of a more fitting punishment.